1 THE PROBLEM STATEMENT

1.1 Introduction

Civil disobedience the world over has been premised on political protests. At the heart of civil disobedience is the deliberate breaking of the law aimed at bringing about a change in the law or policies of a government.[1] In most cases, the people have had unarmed confrontation with the State at its failure to recognise and enforce its constitutional obligations. In cases where the legislature has made encroachments on the life, liberty and property of any individual and the court has enforced the will of the legislature;[2] one is morally compelled to disobey the law.[3]

On the other hand, civil disobedience is at cross purpose with the law. The court views all strikes, protests and picketing as having the potential to cause inconvenience.[4] Thus the courts may be inclined to view civil disobedience as an attack against the judiciary and the legislature. The Constitution of South Africa[5] acknowledges the rule of law[6] and recognises the right to engage in actions of civil disobedience.[7] The question for determination is how the present day South African government has reacted to civil disobedience, when it is the very tool that has played a large role in bringing them to power.

This paper seeks to establish that civil disobedience and the rule of law should be balanced in a healthy democracy. The citizenry should be made aware of its rights and obligations imposed by the constitution. On the other hand, the State’s response to civil disobedience should be one enveloped in legal authority. From Mahatma Gandhi’s Salt Marches to the imminent Cosatu threat for civil disobedience against E-Tolls[8] in Gauteng the paper shall articulate that civil disobedience in any democracy should not be met with a knee jerk reaction.

This study will define the concept civil disobedience and rule of law. To understand the link between civil disobedience and the rule of law the study shall critically analyse the theories of legal positivism and natural law. The paper shall critically analyse the Hart-Devlin debate which will be followed by the Hart-Fuller debate. An analytical application of these theories shall then be tested against the South African context in both the Apartheid era and the post 1994 period to see how civil disobedience and the rule of law intersect.

2 WHAT IS CIVIL DISOBEDIENCE?

Civil disobedience is illegal activity undertaken to protest laws that are regarded as unjust. It “stands for that form of dissent at the boundary of fidelity to law”.[9] Civil disobedience is a powerful force against governments because it attacks the most vulnerable tiers of all hierarchical institutions and governments. The philosophy embodies the recognition that obligation beyond those of the law might compel law breaking. This protest over an unjust law or policy committed by violating law conscientiously, openly and non-violently, with respect for the interest of others comes with acceptance of punishment for breaking the law.[10] This definition includes the key elements of civil disobedience. It also affirms the fact that civil disobedience is defiance of the law regardless of whether the act itself will be vindicated through legal process.

To Gandhi,[11] civil disobedience is the inherent right of a citizen which he derives from the sacred duty not to participate in evil. “Civil disobedience, therefore, becomes a sacred duty when the state has become lawless, or which is the same thing, corrupt. And a citizen that barters with such a state shares its corruption or lawlessness”.[12] Gandhi believes that individuals should only turn to civil disobedience if the cause is just and even then only when the injustice is so great that our conscience and self-respect do not permit us to tolerate it. “There are many unjust laws that a good citizen obeys so long as they do not hurt his self-respect or the moral being”.[13] Thus for Gandhi civil disobedience is linked to integrity and self-respect. And when it is not linked one should not break the law in order to deal with such injustice.

Civil disobedience takes two distinct forms: direct and indirect disobedience.[14] The former entails a situation where a protestor violates the unjust law itself, while the latter is a situation where a protestor violates a generally legitimate law to protest an unjust law or government policy. With direct disobedience, a court may strike down the unjust law upon judicial review. Thus some cases of direct disobedience constitute “test cases” or “provisional” disobedience pending judicial action. On the other hand, the logic of indirect disobedience lies in the fact that some unjust laws or policies will not allow direct disobedience. Therefore indirect disobedience may require greater attention to establishing a nexus between the illegal act and the unjust law or policy.

The above two forms of civil disobedience are well complemented by the use of different nonviolent methods. Gene Sharp[15] divides these methods into three categories: non-violent protest and persuasion, non-cooperation and direct intervention. The first category includes parades, vigils, picketing, posters, teach-ins, protest meetings and defiance campaigns. The second method involves discontinuing, withholding or defying certain existing social, economic and political relationships. This includes social boycotts, economic boycotts and political boycotts. Direct intervention methods are to some extent risky and calls for the commitment of the protestors.

This method is used to intervene directly in a situation in order to disrupt the activities of the hierarchical institution. Protestors can engage in fasts, sit-ins, non-violent obstruction, the establishment of new social patterns, seeking imprisonment and establishing a parallel government. However the common denominator in all these forms of civil disobedience is that the protestors accept punishment by the state for participating in civil disobedience.

Acceptance of punishment establishes that civil disobedience respects the rule of law and ensures its weight. The protestors defy the law and then submit to its judgements as a sacrifice communicating the gravity of the protested injustice. Rule of law excludes individuals from exempting themselves from obedience, let alone taking the law into their own hands. Thus it was held in a Canadian court in the case of R v Pratt[16] that civil disobedience is an assault upon the institution of the judiciary and a threat to the rule of law. Also in R v Drainville[17] Judge Fournier in his reasons emphasised that civil disobedience reflects an attempt by protesters to “arrogate” the powers of judicial office to themselves and this represents a dangerous slope towards anarchy. This brings in the crucial point of this paper. The injunction that law must have a morally defensible content begs a lot of questions. Is the validity of legislation based on its moral content or does law without justice or morality retain its status as law? Does this in any way justify disobedience at any point?

To understand the above questions it is important to analyse critically the polarised positions of legal positivists and natural law philosophers. Some engage in civil disobedience because they are of the feeling that all statutes and government policies must be premised on morality. On the other hand it is given that law and morality should be separated. This study will not delve into the intricacies of these philosophies but will briefly engage the theories to determine why people engage in civil disobedience and if ever there is justification for it.[18]

3 LEGAL POSITIVISM AND NATURAL LAW

3.1 The Hart-Devlin Debate.

Lord Patrick Devlin was of the view that the law should enforce morality. Legal moralism according to him is not just for the protection of individuals but also for the protection of society. Society according to him include the “institution and the community of ideas, political and moral without which people cannot live together”.[19] For that reason, the sphere of law should not as a matter of principle be limited to regulating conduct that has direct adverse effects on identifiable individuals. Society is entitled to enforce its morality in order to prevent the society from breaking apart. Thus certain acts tend to weaken society and this can potentially be made illegal for no society can do without intoleration, indignation and disgust.[20]

In this Devlin is arguing that there must be toleration by the law of the maximum individual freedom that is consistent with the integrity of society. Society is also entitled to enforce its morality in order to preserve its distinctive communal values and way of life.[21] Devlin sees a shared morality as of instrumental value, analogous to ordered government and an area in which there is both a public and private interest. The implication thereof is that the legislator and the judge duties are to ascertain and assess the correctness of the common belief of the society.

In his critique of Devlin, Hart pays particular attention to Devlin’s argument that societies can disintegrate without a shared morality. He observes that legislation of any civilised community should aim at preventing harm[22] to others and rejects the notion that legislation should protect the essential institutions of society. The law recognised as valid within society is derived from social practices such as legislation, adjudication and its administration.[23] This is because a legal system consists first and foremost of a body of rules that people must accept and agree to. Hart is of the opinion that law is a combination of primary duty-imposing rules and secondary power-conferring rules.[24]

Primary rules impose obligations, duties and requirements, whilst secondary rules give citizens power to change the legal positions which are: rules of recognition, rules of change and of adjudication. Rules of recognition are rules that tell you whether a rule is a valid legal rule. If for example parliament passes a Bill into law without having a plenary session on it or follow proper procedure the law will be invalid. Rules of change regulate the way in which legal rules and status can be changed by individuals whilst if people want to settle a dispute in a court of law they ought to follow rules of adjudication.[25]

Divergent the views of Hart and Devlin seem to be, they are bound by one common thread: morality. Hart says: “…..certification of something as legally valid is not conclusive of the question of obedience, and that however great the aura of majesty or authority which the official system may have, its demands must in the end be submitted to a moral scrutiny”.[26] This commonality on morality from divergent theories suggest to legislators and the judiciary that laws that lack moral content, valid as they might be can be disobeyed by the society if they don’t meet the common belief.[27]

3.2 Hart-Fuller Debate .

The legal discourse centred on the validity of Nazi laws which to some extent were similar the Apartheid laws in South Africa. The question for determination was whether such Nazi laws were morally defensible or valid. Stated differently, “Don’t tyrannies have working legal systems?” And if citizens decide to disobey such laws will they be punished by the judiciary. A court[28] ruled that the Nazi laws were “contrary to sound conscience and sense of justice of all decent human beings”. Fuller argues that to call the Nazi system legal and to call its rules laws was a false description of what they were. Instead such laws were instruments of an arbitrary and tyrannical regime which justifies civil disobedience.

[...]

[1] Rawls J A Theory of Justice (Harvard University Press 1971) p 371

[2] See R v Sachs 1979 (4) SA 392 at 399 H

[3] See Society of Advocates of South Africa v Fischer 1966(1) SA 133 (T) at 135

[4] See Growthpoint Properties Ltd v South Africa Commercial Catering and Others (6467/2010) [2010] ZAKZDHC 38; 2011 (1) BCLR 81 (KZD); [2011] 1 All SA 537(KZD); (2010) 31 ILJ 2539 (KZD) (3 September 2010) at paragraphs 56 and 57.Pillay D, J in his judgment also stated that like all other rights, the right to demonstrate, bargain collectively, strike and picket are not unlimited and absolute.

[5] Constitution of the Republic of South Africa, 1996.

[6] Constitution of the Republic of South Africa,1996 section 1(c)

[7] Constitution of the Republic of South Africa1996 section 17 provides that “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions”.

[17] See R v Drainville (1991) 5 C.R. (4th) 38 (Ont.Ct. (Prov.Div)) at pp12-13. This case dealt with a protest over the construction of a road over lands that the accused believed belonged to aboriginal people. The accused defence was that passive disobedience is a bar to conviction. The court rejected this defence as irrelevant to the court’s considerations pertaining to the “colour of the right”. It was held that “Moral convictions though deeply and honestly felt cannot transform illegal actions into legal ones; only the “rule of law” must prevail”. pp. 13

[28]Oberiandesgericht Bamberg 27 July 1949, 5 Suddeutsche Juristen-Zetung 207 German 1950.The Landesgericht (the state appellate court) concluded that the controlling Nazi statutes were “highly iniquitous laws….considered to be terror laws by the great majority of the German people”.

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